Oct 15

20

We are familiar with the words “Ignorance is no excuse in law”. But when law is in a state of constant evolution and re-interpretation, it is difficult not to question how will “Ignorance” be tested. Just as many other principles of law are being over turned, this adage also deserves a fresh look.

Normally this adage “Ignorance is no excuse” applies to “Ignorance of law”. “Ignorance of fact” cannot be put in the same light as such “Ignorance of Fact” may be argued as similar to “Mistake of Fact” that could be considered as a “Valid defense” particularly when it is supported by “Due Diligence” and “Good Faith”.

Even the “Mistake of Law” is considered as capable of being held out as a valid defense under the following circumstances

-When the law has not been published;
-When the defendant relied upon a law or statute that was later overturned or deemed unconstitutional;
-When the defendant relied upon a judicial decision that was later overruled; or
-When the defendant relied upon an interpretation by an applicable official.

However some of the recent developments in India particularly involving the interpretation of Cyber Law indicate that often mistakes committed by the lower end of law enforcement often result in new laws being created out of ignorance.

One such example recently is the discussion on the liability of a WhatsApp group administrator on the contents posted in the group by an user. This discussion followed the action of the Latur Police in Maharashtra who arrested a Whats App group administrator for a content that was posted in the group.

In this case, Supreme Court ruled that Section 66A of ITA 2000/8 was unconstitutional since it violated Article 19 of our Constitution and went ahead to scrap the section. This famous (infamous?) case originated because the policemen in Palghar, Maharashtra arrested two ladies one for posting a message on a facebook page and the other for clicking on “I like” button against that message. The Supreme Court in its wisdom held that the action of the Police was violative of the “Freedom of Expression” guaranteed by our constitution.

It must however be reiterated that while it was correct for the Supreme Court to defend the freedom of expression and the freedom to say what the objected face book post said, it was incorrect for the Supreme Court to hold Section 66A of ITA 2008 as a law was made to curb such freedom of expression and hence the Court was wrong in scrapping the section.

However, if we turn the pages of the brief history of the Section as it appeared in the media and continues to appear in the media, it appears that Supreme Court did a great thing by defending the democratic principles which was being stiffled by the Section. Many experts also supported the scrapping of Section 66A on the grounds which the Supreme Court considered as correct.

In the process, a new law was created in India that the erstwhile provisions of Section 66A which the Supreme Court struck down was in deed violative of the constitutional right of freedom of speech. If in future similar laws are passed, then the judgement in this Shreya Singhal case can be held out as a precedent.

Naavi.org has consistently maintained that application of Section 66A to the Palghar case was wrong ab-initio and this mistake of the police should have been struck down by various Courts since Section 66A did not apply to “Publishing” of electronic content but only applied to “Message” sent from one communication device to another. This fundamental difference between “Publishing” and “Messaging” was blurred by the erroneous judgement of the Supreme Court in this case.

We donot know when this mistake of law will be corrected in future.

The Latur Case

Now the arrest of WhatsApp administrator by the Latur police (and earlier by Agra Police) and the media reports that are coming through there after indicate that we are in the process of re writing another piece of law based on the mistaken action of the police at the lowest rung of law enforcement.

I also note that many experts in the field of Cyber Law have endorsed the action of the Police either consciously or otherwise in the course of expressing their opinion which goes towards building an opinion that what the police have done is correct.

Naavi.org however does not want to contribute to the proliferation of an erroneous opinion being created and though it looks odd to contradict all other experts, we would like to go on record with our opinion.

Before I proceed further I would like to state however that if I am a policeman and I spot a message either on WhatsApp or in an Off the Air interception of a mobile communication or even a over hearing of a conversation in a bar in which one is speaking to another indicating commission of an offence of any nature, more so if it can disturb public peace or national integrity, I would swing into action and try to apprehend the alleged offenders to prevent commission of a crime. This does not mean however that I would arrest the owner of the bar in which the conversation was held or the mobile service provider who facilitated the conversation. I may however contact them for information on the conversatonists whom I need to identify and continue my further investigation. If I feel that they are aware of the identity of the conversationists but are not sharing the information, I will then threaten them with legal action and if they are obstinate, I may then arrest them “for withholding evidence and interfering with the lawful duty of the officer”. All my other comments must be viewed with this caveat.

Now coming back to the case of the arrest of the WhatsApp Administrators, I refer to the following reports

To start with let’s see the sections under which Police seem to be building a case. There are three sections mentioned namely Section 153 and 34 of IPC and Section 67 of ITA 2000/8.

These sections are reproduced here for immediate reference:

Section 153 in The Indian Penal Code

Wantonly giving provocation with intent to cause riot—if rioting be committed—if not committed.—

Whoever malignantly, or wantonly, by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both; and if the offence of rioting be not committed, with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 34 in The Indian Penal CodeActs done by several persons in furtherance of common intention.—

When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

A quick glance at these section indicate that

a) Section 67 applies only to material which is lascivious or appeals to the prurient interests. The subject message is no where near this definition. Hence this section is not applicable. In the unfortunate event of the Shreya Singhal error repeating in this case, we will be redefining the meaning of “lascivious” and “prurient interest” to “alerting the community for a danger from kidnappers of children”.

b) Section 153 of IPC applies when an “illegal act” has been committed and some body uses it to provoke others into causing “offence of rioting” and

c) Section 34 applies when a “Criminal act” is committed by a number of persons.

In my reading of these sections, first an illegal act has to be committed, then there has to be a provocation to riots using the illegal act as a reason and there has to be several persons involved in such an act if Sections 153 and 34 of IPC are to be applied.

Here, Section 67 of ITA 2000/8 is an independent section that defines an illegal activity and Section 153 of IPC is dependent on Section 67 and Section 34 is further dependent on Section 153.

Since Section 67 is considered applicable for “Publishing or Transmitting of Obscene Electronic Content”, unless the “objectionable message” falls into the category of “Publishing or Transmitting of Obscene Electronic Content”, no offence is made out under any of these sections.

Hence the entire case filed by Latur Police is without a proper basis and arrest of WhatsApp administrators is a gross misuse of law which should be questioned under the Human Rights Act. (Unfortunately Human Rights Activists in India are only interested in protecting terrorists and criminals and not genuine victims and hence no body may come to the rescue of these hapless WhatsApp administrators).

Now let us turn our attention to another aspect. If the content had been different and it was say promotion of terrorist ideologies. Then we need to discuss whether the WhatsApp platform can be considered as equivalent to a “Website” and can be treated as an “Intermediary”.

An “Intermediary” is defined under Section 2(w) of ITA 2000/8 and if any offence is committed by a third party with messages that are handled by an “Intermediary”, then as per provisions of Section 79 of ITA 2000/8 the liability of the Administrator would be determined.

Accordingly,

“Intermediary” with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

There is no doubt that this is an “inclusive” definition and one can take the liberty of extending the definition to beyond the examples provided such as “telecom service providers”, “network service providers”, “internet service providers”, “web hosting providers”, “search engines”,”online payment sites”, “online auction sites, online market places and cyber cafes”. In the subject dispute, an attempt is being made to extend the definition of “Intermediary” to a “WhatsApp Group” and the role of the “Administrator” to that of the owner of the types of entities mentioned in the section.

When the WhatsApp is first installed on the mobile, it asks for permissions to access data on the device such as the device ID, contact details etc.. Basically these are privacy issues which the user agrees and downloads the App. Once the app is downloaded, there is a “Terms of Service” which a person need to “agree” and then enter the mobile number for verification. Once accepted, it is difficult to revisit the Terms and one has to go back to the website to check the FAQs and other terms.

Apart from absolving itself from any responsibilities as to the content, WhatsApp specifically says

“YOU SPECIFICALLY ACKNOWLEDGE THAT WHATSAPP SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.”

The user therefore discharges WhatsApp from all the liabilities and takes all such liabilities on himself.

When messages are sent or received, WhatsApp stores it on the device and a limited back up to facilitate delivery after a user is disconnected from Internet and reconnects.

According to WhatsApp,

“WhatsApp does not copy nor store the messages sent through its messaging system. Nevertheless, if the recipient is not connected, undelivered messages will be kept in WhatsApp servers and may be stored in those servers for up to 30 days”.

This is a transient storage that makes “WhatsApp” an intermediary as per ITA 2008 only in respect of such “Undelivered messages”. In respect of “Delivered Messages”, WhatsApp is not rendering the “Storage Service” and is providing only routing service which is akin to a telecom service provider. While this is also a service recognized as that of an intermediary, the “Due Diligence” requirements under Section 79 differs from an intermediary who provides storage services from an intermediary who provides message routing services. WhatsApp wears two hats and its responsibilities for “Due Diligence” therefore has to be seen with reference to its function.

In the subject case, Police are not making WhatsApp a party to the dispute and only making a criminal charge on the “Administrator of a Group”. It is not clear if they consider the Administrator as a representative of the WhatsApp Company or a service provider himself who provides a service called “Group” on the platform provided by WhatsApp company.

While the Administrator is a user of the WhatsApp service and is bound by the terms which he has signed with the Company for which the WhatsApp company has a cause of action, the creation of a group is an activity of the user to make it convenient for him to exchange messages with a sub group of his contacts. When a person sends a message to a group, it is a set of multiple messages which will be sent to each of the persons. It is therefore an aggregation of many messages sent with a single click. The administrator when he creates the group has the power to add remove or make another person a co-administrator (If the person is already in his contact list ). He may also invite a person to join the group. The invitee may refuse the invitation by exiting the group. The recipient of a message can delete the content of the message received on his account or forward it to another person or a group in his name apart from replying back to the group from which the message was received by him.

The recipient of a message from a group only sees the mobile number of the sender unless he has been stored as a contact. But it is clear from the message that the message has originated from “an identified mobile number” and not from the group administrator.

Every WhatsApp group message is therefore attributed directly to the given mobile number and the Group admin has no role in “initiating the transmission of a message, selecting the the receiver of the transmission (it goes to all the members of the group) and selecting or modifying the information contained in the transmission”. (Conditions mentioned under Section 79 of ITA 2000 for the intermediary to be absolved of the liabilities).

In the event we presume that the “Group” is itself an intermediary service provided by the Administrator, the admin is entitled to protection under Section 79 if he observes “Due Diligence” and also if he takes expeditious action towards determination of whether a content is objectionable and is to be removed, after he is duly notified by a Court.

Thus in the subject case, the fact that the WhatsApp group is an intermediary itself is debatable. Even if so, the admin’s liability can only be counted from the time a Court order is served (may be we can dilute this to an order being served from the Police) and is limited to the removal of the content. In WhatsApp, the admin has no power to remove content in individual user’s devices. At best he may send another group message that he has received a notice from the Court/Police and every user is required to delete the content. Beyond this, expecting the Admin to share the responsibility for the content itself is not justified.

Police should remember that the admin should be presumed to be innocent until proven guilty. Police should also realize that some times when the admin of a group leaves the group, another person might have been assigned as an administrator without the need to do anything affirmative.

The responsibility of the admin in any investigation should be considered limited to the extent of providing the phone number of the person who has posted the objectionable content and it is the duty of the Police to trace the person using the KYC of the mobile service provider. When mobile numbers are used as valid identification for even Bank accounts, a WhatsApp administrator cannot be expected to do any KYC other than identifying the mobile number which is done by the WhatsApp itself when the app is downloaded and installed.

We need to also recognize that WhatsApp is not a service to host content and it is a “Messaging Platform”. It is only in the event of some message not getting delivered, it gets stored until the destination device re-connects to the Internet. It cannot therefore be equated to posting of content. While Section 66A could have been applied to it if the section had not been scrapped, Sec 67 can be applied only if the message is obscene.

However, Section 67 cannot be applied in all cases since it applies only for messages that can be proved that it has the effect “ to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter” . This would require that only a member of the group has the right to raise objection and a third party cannot take cognizance of the message being an offence under Section 67 since he is not a member of the group and the message is not meant for him.

Looking at from any angle therefore the action of the Police in the Latur Case to arrest the WhatsApp administrator is a gross misuse of it’s power and calls for action under the Human Rights Act.

As stated earlier, if a person sends a message which is say anti national and uses the emphasis “Please share this with your friends”, then he may be accused of trying to broadcast the message outside the group and punished as may be appropriate. I donot think that the Latur message of alerting on Child kidnapping falls into this category. In many cases Police itself issues warning such as “Donot open door for strangers”, “Beware of motor cycle boarne persons asking for address” etc. These are also having the potential of creating a scare and lead to undesirable and unintentional consequences including lynching of a suspect.

Hence Police are wrong in Latur Case to hold WhatsApp admins responsible on the basis of whatever information is now available to the public.

Hence media should stop creating its own scare that WhatsApp Administrators are in the danger of being arrested. Instead of spreading this rumour, media should try to educate the Police.

I also request Cyber Law Experts not to interpret the term “Intermediary” in too broad a term not envisaged in law or merge the definitions of “Publishing” and “Messaging” into a single category and burden a WhatsApp administrator with legal responsibilities not envisaged in law.

More importantly, I wish that Courts and Magistrates donot validate the Police action by confirming the action taken by the police in which case, like the Shreya Singhal case, this will be another case where an ignorant Police Constable would have re written law through the mouth of an equally ignorant Judge sitting in a Chair which is respected for its role and authority to deliver justice to the community.

Hi Naavi,..
A very interesting article. I agree in total with you. Just a point to make. WhatsApp says it holds data until undelivered to end user upto 30 days..
Evey message has to be held for some duration may be a second or 30 days as the end user may or may not be online due to numerous reasons such as no Internet connectivity to poor Internet connectivity or some other reason.
The point I am making is it has to and does store information even if it claims only to be routing message. What is the deletion policy once the message is delivered say after a week. I am 100% sure its same as Ashley Madison case and Snapchat. It is a paid service after a year of free usage an d thus it is liable and falls under the term intermediary.

New uses have created new misuses as well. Technology has been moving at a break-neck speed and the law has failed to catch up with these technological advancements. We are in for a legal limbo with the new technological advancements which puts the law enforcement, lawmakers far behind and less tech savvy than the criminals. Good news for criminals and bad news for the law abiding citizen.

The police and the law enforcement are tackling 21st century crimes with 18th century tools. Poor police is dependent on private individuals or groups like hackers to help them nab criminal in this digital age. It was the hacktivist group anonymous which took down the 20k twitter and social media accounts of ISIS, not the law enforcement of the most powerful govts.